United States District Court, N.D. California
CARLOS C. HOUSH, Plaintiff,
RONALD RACKLEY, Defendant.
ORDER DENYING REQUEST FOR TRANSCRIPTS; GRANTING
REQUEST FOR LEAVE TO FILE AMENDED PETITION RE: DKT. NOS. 52,
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
a pro se prisoner, filed this action for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Now pending
before the Court are petitioner's “Motion to Object
re: Dkt. 48”, Dkt. No. 52, and petitioner's request
that the Court consider a claim that the CDCR has incorrectly
calculated his sentence by failing to take into account
Propositions 36 and 47, Dkt. No. 55.
petition alleges the following claims for federal habeas
relief: the trial court erred in denying petitioner's
Batson/Wheeler motion; the trial court
erred in excluding Dr. Moskowitz's December 2008
psychiatric report; petitioner was prejudiced by the
victim's references to his custodial status and prior
imprisonment; the trial court erred in admitting evidence of
prior domestic violence; the trial court erred in allowing
his Montana prior conviction to qualify as a strike; the
trial court violated Cal. Penal Code § 654 when it
imposed consecutive sentences; the trial court erred in
denying his motion for a new trial based upon newly
discovered evidence; cumulative error; and sentencing error
on the basis of a false conviction. Dkt. No. 1.
9, 2019, respondent filed an answer, along with a
reporter's transcript of the underlying state trial
proceedings, with the exception of a sealed transcript of a
confidential Marsden hearing held on January 5,
2012. Dkt. Nos. 40-43; Dkt. No. 46 at 1.
Request for Transcripts
has filed a “Motion to Object re Dkt. 48, ”
stating that he has not received the transcripts ordered,
specifically the sealed transcripts for the January 5, 2012
Marsden hearing. Dkt. No. 52. Petitioner argues that
the January 5, 2012 hearing would prove that the trial judge
was objectively unreasonable in denying his request for a
change of venue due to racial discrimination. Docket No. 48 is
the Court's June 28, 2019 order denying petitioner's
request that the Court amend its March 11, 2019 Order (Dkt.
No. 38) to require that either the Court or respondent
supplement the record with transcriptions of certain
exchanges between the trial judge and jurors that he alleged
were not transcribed. Dkt. No. 44. In its June 28, 2019
order, the Court denied the request because it found that
there was nothing in the record, outside of petitioner's
allegation, that supported a finding that certain portions of
the court reporter's notes were not transcribed and that,
in the event that the court reporter did not record these
exchanges, transcription would not be possible. Dkt. No. 48.
extent that petitioner is seeking reconsideration of the
Court's June 28, 2019 Order, the Court DENIES plaintiff
leave to file a motion for reconsideration. No pre-judgment
motion for reconsideration under Local Rule 7-9 may be
brought without leave of court. See N.D. Cal. Civil
L.R. 7-9(a). The moving party must specifically show: (1)
that at the time of the motion for leave, a material
difference in fact or law exists from that which was
presented to the court before entry of the interlocutory
order for which the reconsideration is sought, and that in
the exercise of reasonable diligence the party applying for
reconsideration did not know such fact or law at the time of
the interlocutory order; or (2) the emergence of new material
facts or a change of law occurring after the time of such
order; or (3) a manifest failure by the court to consider
material facts which were presented to the court before such
interlocutory order. See N.D. Cal. Civil L.R.
7-9(b). Petitioner has not addressed any of these factors,
and his repeated conclusory allegations that the respondent
is withholding the transcription of such exchanges are not a
basis for granting reconsideration of the Court's June
28, 2019 order.
extent that petitioner is requesting the transcript of the
January 5, 2012 Marsden hearing, this request is
DENIED. The habeas petition does not contain claims relying
on the Marsden hearing, does not contain a challenge
to the trial court's denial of a change of venue, and
does not allege judicial bias. The transcript of the January 5,
2012 Marsden hearing is unrelated to the claims
raised in the instant action.
Request for Leave to Amend Petition
has requested that the Court consider his claim that the CDCR
has incorrectly calculated his sentence by failing to take
into account Propositions 36 and 47. The Court construes this
request as a request for leave to amend the petition.
Piecemeal amendment of a petition by filing separate
pleadings raising separate claims is not appropriate.
However, the Court will GRANT petitioner leave to amend his
petition to raise this claim. If petitioner wishes to raise
this claim, he must file an amended petition that raises
both this claim and the claims already
raised. Amendment of a petition constitutes waiver of any
omitted arguments or claims from previous versions of the
petition. See Sechrest v. Ignacio, 549 F.3d 789, 804
(9th Cir. 2008) (filing of new petition cancels out and
waives any claims from old petition). If petitioner
chooses to file an amended petition, the answer filed by
respondent and the traverse filed by petitioner will be
rendered moot. Within twenty-eight (28) days
from the date of this order, petitioner shall file an amended
petition. If petitioner fails to file an amended petition by
this date, this action will proceed on the original petition
(Dkt. No. 1).
foregoing reasons, petitioner's request for
reconsideration of the Court's June 28, 2019 order is
DENIED (Dkt. No. 52), petitioner's request for the
January 5, 2012 Marsden hearing is DENIED (Dkt. No.
52), and petitioner's request for leave to amend his
petition is GRANTED (Dkt. No. 55). Within twenty-eight (28)
days from the date of this order, petitioner shall file an
amended petition. If petitioner fails to file an amended
petition by this date, this action will ...